R v Shen
[2007] NZCA 67
•15 February 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA338/06 [2007] NZCA 67
THE QUEEN
v
HONG GANG SHEN
Hearing: 12 March 2007
Court: Robertson, Baragwanath and Venning JJ Counsel: A J Trenwith for Appellant
J M Jelas for Crown
Judgment: 15 March 2007 at 10.30 am
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of seven years is quashed and replaced with a sentence of five years’ imprisonment.
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1] This is an appeal against a sentence of seven years’ imprisonment imposed on the appellant by Judge Field in the District Court at Auckland on a charge of
kidnapping. The appellant had pleaded guilty at a late stage.
R V SHEN CA CA338/06 15 March 2007
[2] The appellant was one of a number of offenders involved in the kidnapping of the victim who was a Chinese national. She owed money to some of the offenders including the appellant. She had borrowed money from the appellant and others to feed her gambling addiction. The apparent aim of the kidnapping was to have her repay her debts.
[3] On 30 August 2004 the victim was met at Auckland airport by the offenders, including the appellant. The victim was forced into a car and driven about Auckland for three hours. During this time she was forced to sign a contract regarding the payment of the monies she had borrowed. The appellant drove the car for part of the time. The victim was then taken to her home and, in the presence of the appellant, was forced to give her passport to another offender.
[4] The appellant then drove the victim to a hotel. The offenders checked into a room using the victim’s name and passport as identification. She was held captive in the room at the hotel from 30 August 2004 until 5 September 2004. She was told that she would be killed if she did not meet their demands. She was guarded by the appellant and others and was only fed one meal a day. She was also physically assaulted from time to time by two of the appellant’s associates and the appellant. The appellant was not responsible for the more serious assaults on the victim, but he did whip her with an electrical cord. The victim suffered cuts to her lip requiring stitching, bruising and welts to her arms and torso. She was forced to telephone her husband in Hong Kong to ask for money to pay her captors. During the course of one call she was able to tell her husband she had been kidnapped and where she was being held. He reported the matter to the Hong Kong Police who contacted the Auckland Police. That led to the victim being freed from the hotel room in the early hours of Sunday 5 September 2004. The appellant and two associates, Messrs Wen and Wang, were located in the foyer area of the hotel.
[5] In imposing seven years’ imprisonment, Judge Field referred to the decision of this Court in R v Luo CA171/05 12 October 2005 and stated there was clearly a need for deterrence. He accepted the Crown’s submission that an appropriate starting point was ten years. Judge Field gave a discount for the appellant’s plea of guilty and his co-operation with the police. The appellant had signed a brief of evidence which could be used in the forthcoming trial of two of the other alleged offenders, Messrs Wen and Wang.
[6] Two other offenders, Mr Li and Ms Zhang, had earlier pleaded guilty and been sentenced by the same Judge. The Judge referred to the sentences he imposed on Mr Li and Ms Zhang of three years nine months and three and a half years respectively. In their cases he had taken a lesser starting point of eight years’ imprisonment. Judge Field considered that Mr Li and Ms Zhang were less culpable as they were not actively involved in the continued custody of the victim at the hotel as the appellant and, allegedly, Messrs Wen and Wang were.
[7] In fixing the appropriate discount from his start point of ten years the Judge noted that the appellant’s guilty plea had been entered at a late stage and that the appellant’s co-operation was after Mr Li and Ms Zhang had also agreed to co- operate with the police.
Appellant’s submissions
[8] In written submissions counsel argued the sentence of seven years was manifestly excessive in that:
(a) the starting point of 10 years was excessive;
(b)there was a lack of parity with the sentences imposed on the co- offenders Mr Li and Ms Zhang;
(c) the Judge failed to give adequate discount for the appellant’s co- operation; and
(d)the Judge failed to take sufficient notice of the appellant’s personal circumstances.
Crown submissions
[9] For the Crown Ms Jelas submitted the final sentence was not manifestly excessive and that:
(a) the starting point of ten years’ imprisonment was within the range available to the Judge;
(b) the starting point of eight years’ imprisonment for the co-accused
Mr Li and Ms Zhang was within the range available to the Judge;
(c)the discount of three years for late pleas of guilt and an offer to give evidence for the Crown at trial was appropriate; and
(d)the sentencing Judge was entitled to draw clear distinctions between the appellant and Mr Li and Ms Zhang in terms of the start point and final sentence.
[10] Ms Jelas advised this Court that Mr Li and Ms Zhang had now been deported and were unlikely to return to give evidence for the Crown. In the circumstances she acknowledged that the appellant’s evidence at the trial of Messrs Wen and Wang will now assume significantly more importance than it would have had at the time of sentencing in the District Court.
Decision
[11] Judge Field sentenced the appellant without a pre-sentence report. Although s 26 of the Sentencing Act 2002 does not expressly direct the Court to obtain a pre-
sentence report, there is a well established practice not to sentence an offender to a term of imprisonment without such a report except in rare and exceptional cases: In re Moulin [1943] NZLR 325; R v Spring CA221/85 18 November 1985; R v Bellingham (2005) 21 CRNZ 561 (CA).
[12] During the adjournment Ms Jelas was able to speak to Mr Cullen who had appeared for the appellant on sentence. Mr Cullen confirmed that the appellant pleaded guilty on the Friday of the week immediately prior to trial and was sentenced on the Monday. It was anticipated that the trial of the remaining co- accused, Messrs Wen and Wang, would proceed that week although ultimately it did not. Mr Cullen confirmed that the requirement for a pre-sentence report was effectively waived on the understanding that the appellant’s personal circumstances would be put to the Judge by counsel. We note that in his sentencing notes Judge Field recorded the appellant’s personal circumstances at [12], although briefly.
[13] Because we have concluded the appeal should be allowed and the sentence reduced, we can deal with this appeal without requiring a pre-sentence report. However, the importance of a pre-sentence report where imprisonment is contemplated remains and the comments of the then Chief Justice in Moulin at 327, and the more recent comments of this Court in Bellingham at [12], remain valid.
[14] The maximum penalty is 14 years. In this case the features of the offending that supported a starting point of ten years’ imprisonment were that:
(a) the victim was detained by a group of offenders acting together;
(b)the victim was threatened with and subjected to actual violence to comply with the offenders’ demands;
(c) the victim was detained for five days. During that time she was subjected to being beaten occasionally, was only fed one meal a day and was forced to kneel for considerable periods of time;
(d)the victim was not released by her kidnappers. She was only rescued by the police because she was able to alert her husband to her plight;
(e)the appellant and the other offenders effectively took the law into their own hands to enforce a debt the victim owed them; and
(f)the appellant was one of three offenders who remained with the victim and ensured her detention over the five days in the hotel.
[15] The impact on the victim is relevant, although she accepts that the appellant’s treatment of her was not as bad as that of Messrs Wen and Wang.
[16] In the circumstances of this case ten years was within the range for an appropriate starting point for this offending, taking account of the aggravating features relating to the offending and the need for a deterrent sentence. Such offending has, unfortunately, recently become more commonplace in New Zealand. It is not acceptable and there is a need for it to be condemned.
[17] The difference between the starting point of eight years in the case of Mr Li and Ms Zhang properly reflects the different roles the parties played in the offending.
[18] The Judge reduced the end sentence by 30 percent to reflect the guilty plea, the appellant’s personal circumstances (including his clean record) and co-operation with the police. Given the lateness of the guilty plea, the discount could have been no more than 15 percent for that with a further reduction for the appellant’s personal circumstances. On that analysis the Judge allowed a credit of only about 10 percent for co-operation.
[19] In the circumstances of this case, as they now are before this Court, and in light of the decision of this Court in R v Hadfield CA337/06 14 December 2006, a more substantial discount is required for the appellant’s co-operation to date and for his anticipated co-operation at the trial of the co-accused.
[20] In Hadfield this Court considered the varying practices that sentencing Judges applied where the issue of future assistance to the authorities was a factor. The Court held:
[15] Accordingly, for the future, we recommend sentencing judges take into account, where appropriate, not only past assistance to the authorities but also promised future assistance. To the extent Stark [CA104/06
31 July 2006] may have suggested it was inappropriate for sentencing judges to factor in future promised assistance, it should be regarded as overruled.
[21] In Hadfield the Court allowed a total discount of 60 percent for the early guilty plea and co-operation with the police. The Court noted a number of cases where a discount of 30 percent, in addition to a discount for guilty plea, had been given for assistance to the authorities.
[22] In this case we are satisfied that it is appropriate to give the appellant a substantial credit for the assistance he has given to the authorities and that it is anticipated he will provide to the authorities in the future at the trial of Messrs Wen and Wang. While there is the evidence of the complainant, the jury will undoubtedly be assisted by direct evidence from a co-offender. As Ms Jelas properly conceded, given that Mr Li and Ms Zhang will no longer be available to provide evidence, the appellant’s evidence will assume rather more importance than Judge Field would have anticipated when sentencing the appellant.
[23] We are satisfied that when the assistance the appellant has given and has agreed to provide is taken with the guilty plea and personal factors, a total discount of 50 percent is appropriate. That is also more consistent with the effective sentences imposed on Li and Zhang who pleaded at a slightly earlier time than this appellant.
Result
[24] The appeal is allowed. The sentence of seven years is quashed. Mr Shen is sentenced to five years’ imprisonment.
Solicitors:
Crown Law Office, Wellington
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